Wednesday, 24 November 2010

Voting Rights for Detainees: Reform Ordered

A blanket ban on voting rights for detainees in the United Kingdom, in place since 1870, might change into a more nuanced system of assessing which prisoners get the right to vote. Yesterday, in the pilot judgment of Greens and M.T. v. the UK, the European Court of Human Rights decided that the United Kingdom had violated the rigth to free elections (Article 3 of Protocol 1 to the European Convention). The case was legally simple, in the sense that the Grand Chamber had ruled over five years ago in the case of Hirst v the United Kingdom (No.2) that the blanket ban violated the Convention.

The interesting aspect of the Greens and M.T. case is the consequences the Court attaches to this, after five years in which British governments dragged their feet on this, in spite of calls from the Committee of Ministers of the Council of Europe and more importantly of their obligations under the ECHR. The Court noted that it was a cause for regret and concern that no action had been undertaken by the British government to reform the legislation in question. It stressed that the violation in this case was a direct result of the British failure to comply with the Hirst judgment. Moreover, this lack of compliance does not only touch upon the rights of detainees, but also threatens the effectiveness of the Strasbourg system, not in the least because around 2,500 similar applications have been sent to the European Court. Each election in the UK will give rise to a new flood of such applications. Thus the Court in this pilot judgment decided to put more pressure on the United Kingdom. It set out a time table under Article 46 of the Convention (on the binding force of Strasbourg judgments): the UK needs "to introduce legislative proposals" to amend the existing laws within six months after the judgments becomes final (which in effect means nine months of time in total). For the subsequent steps, the Court refers to the Committee of Ministers: "with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst according to any time-scale determined by the Committee of Ministers." Simultaneously, the Court "freezes" the assessment of all pending or newly incoming cases from the UK on this issue, also indicating that relief should come from a change in law, not from awards distributed by the Court. For the applicants in this case, declaratory relief is sufficient (Greens and M.T. got no compensation for any non-pecuniary damages). Although the two applicants here still got compensation for costs made in the proceedings, even that will not be likely, according to the Court. A clear signal that applicants should no longer try their luck in Strasbourg on this matter. If the UK changes its laws in compliance with Hirst, the Court will strike all such similar cases off its list.

It is very important to note that this and previous Court judgments do not entail that all prisoners should be given voting rights under all circumstances (and thus contrary to what some in the British press mistakenly report. See e.g. here). Rather the Court's case-law points out that a blanket ban - which is general, authomatic and indiscriminate - goes too far and that a more individualised assessment of when prisoners can vote is necessary. In the Hirst case the Court indicated that a number of factors could be relevant in that respect, such as the length of the sentence, the nature or gravity of the offence, and the individual circumstances of the detained person. In the later case of Frodl v Austria, the Court specified that such an individualised decision needed to be taken by a judge and that (para. 32 of Frodl) "there must be a link between the offence committed and issues relating to elections and democratic institutions."

Although Prime Minister Cameron has been reported to get nauseous fom the thought of giving prisoners the right to vote, there seems to be a growing understanding in British ruling circles that there is no way to legally circumvent the Strasborug dictum - see here. See also the commentary on the UK Human Rights Blog.